Bubel v. Bubel ( 2022 )


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  •                                                                                FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    JANUARY 21, 2022
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2022 ND 23
    Laura Bubel,                                            Plaintiff and Appellant
    v.
    Joshua Bubel,                                          Defendant and Appellee
    and
    State of North Dakota,                         Statutory Real Party in Interest
    No. 20210263
    Appeal from the District Court of Mercer County, South Central Judicial
    District, the Honorable Cynthia Feland, Judge.
    AFFIRMED.
    Per Curiam.
    Elise A. Fischer (argued), and Theresa L. Kellington (on brief), Bismarck, ND,
    for plaintiff and appellant.
    Kristin A. Redmann, Mandan, ND, for defendant and appellee.
    Bubel v. Bubel
    No. 20210263
    Per Curiam.
    [¶1] Laura Bubel appeals from a district court order denying her motion to
    modify joint residential responsibility to primary residential responsibility. On
    appeal, Laura Bubel argues the court erred in concluding she failed to present
    a prima facie case requiring modification.
    [¶2] Under N.D.C.C. § 14-09-06.6(4), the district court must deny a motion to
    modify primary residential responsibility unless the court finds the moving
    party has established a prima facie case justifying a modification. A prima facie
    case “consists of facts sufficient to support a finding of a material change in
    circumstances and that a change in residential responsibility is necessary to
    serve the best interests of the child.” Klundt v. Benjamin, 
    2021 ND 149
    , ¶ 7,
    
    963 N.W.2d 278
    . A prima facie case justifying a modification of primary
    residential responsibility and, therefore, an evidentiary hearing, is established
    by a material change in circumstances “which either ‘requires’ a change of
    custody for the child’s best interests or ‘fosters’ or ‘serves’ the child’s best
    interests.” Schroeder v. Schroeder, 
    2014 ND 106
    , ¶ 7, 
    846 N.W.2d 716
    . In cases
    involving a motion to modify joint residential responsibility under N.D.C.C. §
    14-09-06.6(6), the movant must show a material change in circumstances and
    show modification is necessary to serve the best interests of the child; however,
    in the context of a relocation case, the movant is not required to show the
    material change has adversely impacted the child. Kunz v. Slappy, 
    2021 ND 186
    , ¶ 22, 
    965 N.W.2d 408
     (relying on Dunn v. Dunn, 
    2009 ND 193
    , ¶ 11, 
    775 N.W.2d 486
    ).
    [¶3] We need not address whether Laura Bubel has demonstrated a material
    change in circumstances, because under our de novo standard of review she
    has not shown how a change to primary residential responsibility is necessary
    to serve the best interests of the child. See Johnshoy v. Johnshoy, 
    2021 ND 108
    ,
    ¶ 9, 
    961 N.W.2d 282
     (holding failure to show change is necessary to serve the
    best interests of the child fails to establish a prima facie case). Laura Bubel
    has therefore failed to establish a prima facie case for modification of primary
    1
    residential responsibility, and we summarily affirm under N.D.R.App.P.
    35.1(a)(7).
    [¶4] Jon J. Jensen, C.J.
    Gerald W. VandeWalle
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    2
    

Document Info

Docket Number: 20210263

Judges: Per Curiam

Filed Date: 1/21/2022

Precedential Status: Precedential

Modified Date: 1/21/2022